Crespo alleges that on October 8, 1990, he was attempting to cross the street when he was grabbed by a police officer. This officer, whom the plaintiff identifies as the defendant Police Officer Joseph Truglia, threw Crespo against a parked car and asked, "Where is it?" (Compl. P 18.)
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Truglia then asked Crespo, "Where is the gun?" After Crespo said he did not have a gun and had no idea what the officer was talking about, Truglia searched Crespo but found no weapon. (Compl. PP 19-20.) Defendant Police Officer Byrant Booth joined Officer Truglia during the search. (Compl. P 21.) Booth and Truglia escorted Crespo to a boarding house where Crespo's acquaintance Joe Martinez rented Room 9. (Compl. PP 10, 21.) Crespo had slept on Martinez's couch during the morning of October 8 and had later been outside the boarding house waiting to give a set of keys to Martinez's girlfriend when she arrived. (Compl. PP 10-14.) When Crespo refused to comply with the officers' request to open the door to the boarding house, Officer Truglia banged Crespo's head against the door. (Compl. P 21.) Defendant Police Officers Denis O'Keeffe, Ernest Lungaro, Mark Kugler, James Gallagher, Robert Fitzpatrick, and Edward Griffith joined Officers Truglia and Booth in searching the boarding house. (Compl. P 23, 32.) At one point Crespo asked whether he was under arrest, and Officer Truglia told him he was "under arrest for many things." (Compl. P 25.) Officer Booth then said to Officer Truglia, "You don't have anything on him." (Compl. P 26.) The officers used the keys Martinez had left with Crespo to open Room 9, where the officers discovered three guns, some ammunition, and a hypodermic needle. (Compl. P 13, 36-37.) Crespo was taken to the 52nd Precinct, where he overheard Officer O'Keeffe say to Officer Lungaro, "We are going to have to say we were chasing him." (Compl. P 41.)

On October 10, 1990, Officer O'Keeffe swore out an accusatory statement against Crespo (Compl. P 46.) Crespo claims that Officer O'Keeffe knew the accusatory instrument was based on false information. (Compl. P 46.) On October 12, 1990, Defendant Officer O'Keeffe testified before a grand jury about the events of October 8, 1990. (Compl. P 47.) Crespo claims that this testimony was malicious and false, that Officers Lungaro, Truglia, Booth, Griffith, Fitzpatrick, and Gallagher were all aware that it was false and that O'Keeffe had falsified documents in connection with his testimony, and that these officers were engaged in a malicious conspiracy to deprive Crespo of his constitutional rights. (Compl. PP 47-48.) No other evidence was presented to the grand jury. (Compl. P 50.) On the basis of Officer O'Keeffe's testimony, Crespo was indicted for three counts of criminal possession of a weapon in the third degree. (Compl. P 49.) One of these counts alleged actual possession of a firearm, and two counts alleged constructive possession of a firearm. Crespo was also charged with one count of criminal possession of stolen property in the fourth degree, and criminal possession of a hypodermic needle. (Compl. P 49.) On January 21, 1991, the charge of possession of stolen property was dismissed for insufficiency of the evidence. (Compl. P 51.)

After counsel was appointed to represent Crespo, Crespo filed a Second Amended Complaint in this action on December 18, 1995. It was in this complaint that the plaintiff added a § 1983 claim against the City of New York and the Police Commissioner.
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II.

The defendants first argue that the plaintiff's claims that he was unlawfully stopped, wrongfully arrested, and subjected to an unreasonable search are barred by the doctrine of collateral estoppel. The defendants claim that the plaintiff had a full and fair opportunity to challenge the constitutionality of the police actions at a pretrial suppression hearing during the prior state criminal proceeding, where the plaintiff's motion to suppress was denied.

Under New York law, "the doctrine of collateral estoppel 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . whether or not the tribunals or causes of action are the same.'" Fletcher v. Atex, Inc., 68 F.3d 1451, 1457 (2d Cir. 1995) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487, 490 (1984)). Collateral estoppel applies only where "(1) 'the issue must have been material to the first action or proceeding and essential to the decision rendered therein' and (2) 'the party against whom collateral estoppel is asserted [must have been] afforded a full and fair opportunity in the prior [] proceeding to contest the decision now said to be controlling. . . .'" Id. at 1457 (quoting Ryan, 62 N.Y.2d at 500-01, 478 N.Y.S.2d at 826, 467 N.E.2d at 490); Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991); Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455-56, 492 N.Y.S.2d 584, 588, 482 N.E.2d 63, 67 (1985). The party seeking the benefit of collateral estoppel bears the burden of proving that the issues involved in a prior proceeding and those raised currently are identical, while the opponent of preclusion has the burden of proving the absence of a full and fair opportunity to litigate the issue in the prior proceeding. Khandhar, 943 F.2d at 247-48; Kaufman, 65 N.Y.2d at 456, 492 N.Y.S.2d at 588, 482 N.E.2d at 67; Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 827, 467 N.E.2d at 491.

The parties do not appear to dispute that issues the state court determined in the suppression hearing were identical to the issues before this court. The trial court found that the police officers who chased the plaintiff had probable cause to arrest him and that they properly conducted a warrantless search of his person and the area within his immediate control. The plaintiff argues, however, that he should not be collaterally estopped from relitigating these issues in the current proceeding because he did not have a full and fair opportunity to litigate the constitutionality of the police actions at his pretrial suppression hearing. The plaintiff contends that at the suppression hearing he was denied the right to call crucial witnesses, he was provided with the prior testimony of a crucial witness only minutes prior to the suppression hearing, and important evidence was withheld from him. The plaintiff contends that collateral estoppel is inappropriate because the pretrial suppression determination was effectively relitigated at trial, the jury's verdict was inconsistent with the suppression determination, and the defendant's conviction was reversed on appeal. In addition, the plaintiff alleges that the doctrine of collateral estoppel does not apply in this case because he was effectively unable to obtain appellate review of the state trial court's suppression determination because the appellate court reversed his conviction without reaching the validity of the results of the suppression hearing, and a determination on the suppression motion issues was not an essential part of appellate court's final judgment.

The plaintiff's strongest--and dispositive--argument against the application of the doctrine of collateral estoppel is that the appellate court overturned his conviction without addressing whether the trial court correctly decided his motion to suppress. Under New York law, "a party has not had a full and fair opportunity to litigate an issue if it has had no opportunity to appeal the adverse finding." Fletcher, 68 F.3d at 1458 (citing People v. Medina, 208 A.D.2d 771, 772, 617 N.Y.S.2d 491, 493 (2d Dep't 1994), appeal denied, 84 N.Y.2d 1035, 647 N.E.2d 463, 623 N.Y.S.2d 1991 (1995)); see also Pinkney v. Keane, 920 F.2d 1090, 1096 (2d Cir. 1990), cert. denied, 501 U.S. 1217, 115 L. Ed. 2d 995, 111 S. Ct. 2824 (1991) (collateral estoppel does not apply when appellate review is unobtainable as a matter of law). Here, although Crespo argued to the Appellate Division that the trial court wrongly decided his suppression motion, the appellate court did not reach this issue in its opinion reversing his conviction. Indeed, the appellate court did not need to reach this issue because it held that Crespo's conviction was not supported by sufficient evidence.

Crespo also argues that the suppression determination should not be given preclusive effect because this decision involved a subsidiary issue that was not essential to the final judgment. In Wilson v. Steinhoff, 718 F.2d 550 (2d Cir. 1983), the Court of Appeals for the Second Circuit held that when there is a denial of a motion to suppress followed by the acquittal of the defendant, the suppression determination is considered "neither a final judgment nor an essential precursor to what was in fact the final judgment, the unappealable judgment of acquittal," and therefore was not entitled to preclusive effect. Id. at 552. The same can be said of the suppression determination in this case. The trial court's denial of Crespo's suppression motion was not a final judgment, and a finding of probable cause for the arrest was certainly not essential to the appellate court's decision to reverse the plaintiff's conviction. Accordingly, because the trial court's decision to deny Crespo's motion to suppress was not essential to the final judgment in the previous action, that determination is not entitled to preclusive effect. See Owens v. Treder, 873 F.2d 604, 611 (2d Cir. 1989) (holding that the doctrine of collateral estoppel does not apply when a party seeking to invoke the doctrine fails to show that a determination that a confession was admissible was essential to the appellate court's affirmance of the conviction).

Therefore, the defendants' motion to dismiss the plaintiff's First, Second, Fourth, Fifth, Sixth, and Seventh Claims on the grounds of collateral estoppel is denied.

In Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 (2d Cir. 1994), the Court of Appeals for the Second Circuit held that under Fed. R. Civ. P. 5(e), the complaint of an incarcerated pro se plaintiff is considered "filed" when the complaint is delivered to prison officials. Id. at 682. This rule recognizes "the inherent disadvantage suffered by the pro se litigant in his inability to monitor the course of his litigation." Id.

Crespo, who initiated this action pro se claims that he delivered the complaint for this action to prison officials on October 6, 1993, two days before the three-year statute of limitations expired on his § 1983 claims, but that prison officials returned the complaint to him because he had failed to provide a disbursement form. On October 8, 1993, the day the statute of limitations expired, Crespo returned the complaint to a corrections officer for mailing after having obtained the disbursement form. The complaint was again returned to Crespo with a request that he supply an "advance" disbursement form because he did not have sufficient funds in his account. Crespo returned the complaint to a corrections officer on October 10, 1993. Crespo claims that he was in keeplock in Green Haven Correctional Facility's hospital ward and did not have "free access" to disbursement forms while he was there. (Compl. P 56.)

The defendants argue that the § 1983 claim against the City of New York and the Police Commissioner must be dismissed because it is untimely. The plaintiff alleges pursuant to Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), that the City of New York and the Police Commissioner are liable under § 1983 because they "fostered a policy pursuant to which perjury and the falsification of documents were methods of securing indictments and convictions of innocent individuals." (Compl. P 80.) The defendants contend that this claim is time-barred because it accrued on the date of the alleged false arrest, October 8, 1990, and the plaintiff did not add the New York City Police Department and the Police Commissioner as defendants until the plaintiff filed an amended complaint on December 18, 1995.
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Federal law governs the date of accrual of § 1983 claims. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994), cert. denied, 41 F.3d 865 (1995). The parties agree that the thrust of the claims against the City and the Police Commissioner is a policy of malicious prosecution based on perjured testimony. It is well-established that for § 1983 claims based on malicious prosecution the statute of limitations does not begin to run until the underlying criminal action is terminated in favor of the accused. Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, 2371 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996); Murphy, 53 F.3d at 548. Here, the underlying criminal action was not terminated in favor of Crespo until the Appellate Division rendered its decision on November 16, 1993. Because the plaintiff added the § 1983 claim against the City of New York and the Police Commissioner on December 18, 1995, less than three years after the underlying criminal action was terminated, this claim is timely. Accordingly, the defendants' motion to dismiss the Seventh Claim as untimely is denied.

VI.

Finally, the defendants contend that the plaintiff's claims against the individual officers for malicious prosecution and conspiracy and against the City of New York for fostering malicious prosecutions must be dismissed because Police Officer O'Keeffe's testimony, which forms the basis for all of these claims, is entitled to absolute immunity. In addition, the defendants claim that the plaintiff has failed to state a valid claim for conspiracy because he alleges only that the defendants had knowledge of Officer O'Keeffe's testimony.

Crespo's allegations of conspiracy are not merely vague and conclusory; rather, he has alleged some facts from which the existence of a conspiracy could be inferred. The plaintiff claims while he was being held at the precinct house after his arrest, he overheard the defendant Officer O'Keeffe say to Defendant Officer Lungaro that "we are going to have to say we were chasing him." (Compl. P 41.) Crespo alleges that "defendant Officers Lungaro, Truglia, Booth, Griffith, Fitzpatrick and Gallagher were aware that O'Keeffe testified at the grand jury, were aware that his testimony was false, and were aware that O'Keeffe had falsified documents in connection with his testimony." (Compl. P 48.) Crespo contends that these officers, who were all involved in his arrest, had an agreement to deprive him of his federal rights. (Compl. P 48.) Recognizing that a plaintiff usually does not have access to the facts surrounding a conspiracy claim and that conspiracies are seldom proven with direct evidence, the Court finds that the factual allegations contained in Crespo's Second Amended Complaint are sufficient to state a claim for conspiracy under § 1983. Accordingly, the defendants' motion to dismiss the plaintiff's conspiracy claim is denied.

VII.

The plaintiff moves to compel the production of a complete, unredacted copy of a document that allegedly contains statements made by Police Officer Lungaro. The motion is denied.

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